Loomis v. Slendertone Distribution, Inc.
Decision Date | 04 November 2019 |
Docket Number | Case No. 3:19-cv-854-MMA (KSC) |
Citation | 420 F.Supp.3d 1046 |
Parties | Jane LOOMIS, on behalf of herself, all others similarly situated, and the general public, Plaintiff, v. SLENDERTONE DISTRIBUTION, INC., Defendant. |
Court | U.S. District Court — Southern District of California |
Jack Fitzgerald, Trevor Matthew Flynn, The Law Office of Jack Fitzgerald, PC, San Diego, CA, for Plaintiff.
Gary A. Wolensky, Paul Augusto Alarcon, Christopher Hossellman, Buchalter, APC, Irvine, CA, for Defendant.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS
Jane Loomis, on behalf of herself and others similarly situated, ("Plaintiff") filed a putative class action complaint against Slendertone Distribution, LLC("Defendant"), alleging five causes of action under California law: (1) violations of the Unfair Competition Law ("UCL"); (2) violations of the False Advertising Law ("FAL"); (3) violations of the Consumer Legal Remedies Act ("CLRA");(4) breach of express warranty; and (5) breach of the implied warranty of merchantability.SeeDoc. No. 1("Compl.").1On July 12, 2019, Defendant filed a motion to dismiss the class action complaint pursuant to Federal Rules of Civil Procedure 8(a), 9(b), 12(b)(2), and 12(b)(6).SeeDoc. No. 8.Plaintiff filed an opposition to Defendant's motion, and Defendant replied.SeeDoc. Nos. 13, 15.The Court found the matter suitable for determination on the papers and without oral argument pursuant to Civil Local Rule 7.1.d.1. Doc. No. 16.For the reasons set forth below, the CourtGRANTS IN PART and DENIES IN PARTDefendant's motion to dismiss.
This action arises out of the sale of the Flex Belt by Defendant to Plaintiff on or about April 22, 2016.Compl.¶ 24.The central issues arise from statements and representations made in Defendant's Flex Belt advertisements.
Plaintiff is an individual domiciled in San Diego, California and brings the action on behalf of herself and a potential class of similarly situated individuals.Id.¶ 5, 34.Defendant is incorporated in and has its principal place of business in New Jersey.Id.¶ 6.
Defendant markets and sells the Flex Belt, an electrical muscle stimulator (EMS).Id.¶ 3.EMS devices are considered Class II Medical Devices by the Food and Drug Administration ("FDA").The FDA has cleared the Flex Belt as a device that "may be able to temporarily strengthen, tone or firm a muscle."Id.¶ 3;Doc. No. 8-8at 2.However, the FDA has "specifically disapproved such devices to assist with weight loss, contour the body, develop visible "six-pack" abs, or otherwise to replace traditional exercise."Id.¶ 3.Moreover, the Federal Trade Commission("FTC")"has already determined that any claims that such ab devices cause fat loss and inch loss, will give users well-defined abdominal muscles (e.g., ‘rock hard,’‘six pack’ or ‘washboard’ abs), or that use of the ab devices is equivalent to conventional abdominal exercises, such as sit-ups or crunches, are false and misleading."Id.
Plaintiff alleges Defendant advertised that the Flex Belt would help consumers achieve the benefits of traditional exercise without traditional exercise.Plaintiff claims she relied on Flex Belt's website and Amazon.com listing before purchasing a Flex Belt and, later, replacement gel pads.Id.¶ 3, 24.Essentially, Plaintiff alleges that Defendant's advertisements were false or misleading because Defendant advertises that using the Flex Belt "would assist in weight loss, body contouring, develop visible ‘six-pack’ abs, and could be used effectively as a replacement for abdominal exercises."Id.¶ 4.In addition to Defendant's website and Amazon.com listing, Plaintiff claims she also relied on information from Defendant's Facebook advertisements and television commercials.Defendant's other advertising initiatives include "celebrity endorsements, paid-advertisement articles, paid bloggers, social media ... and third-party retailers.Id.¶ 11.
Plaintiff points to numerous quotations from Defendant's Flex Belt marketing:
Id.¶ 20.3Defendant's website also states the following:
Additionally, Plaintiff's Complaint includes screenshots from Defendant's website and Amazon.com listing.Id.¶ 21–24.Plaintiff relies upon testimonials from Flex Belt users to support her claims.Seeid.¶ 21;Doc. No. 8-5at 5.Moreover, Defendant's advertising contains several images throughout its Website and Amazon.com listing of individuals with "flat, toned, ‘six-pack’ abdominal muscles on celebrities and models to convey that such results can be achieved through use of the Flex Belt."Compl. ¶ 23;see alsoid.¶ 22;Doc. No 8-5at 3–10;Doc. No. 8-6at 2–5.
Defendant's website and Amazon.com listing also contain language designed to mitigate...
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